McCullen v. . Daughtry

129 S.E. 611, 190 N.C. 215, 1925 N.C. LEXIS 48

• Court: Supreme Court of North Carolina
• Decided: October 7, 1925
• Status: Published

Opinion

Varser, J.

The one question presented by this appeal is what was the true meaning and intent of the testator in the seventh item of his will when he used the words, “money on hand after paying for my funeral expenses.” The. intention of the testator is the guiding star in this search. Technical definitions give way to popular uses of words when the context shows a nontechnical use. Jones v. Myatt, 153 N. C., 225; Schouler on Wills, sec. 470; Gardner on Wills, 403; Foil v. Newsome, 138 N. C., 115; Page v. Foust, 89 N. C., 447.

There is always a presumption that a testator did not intend to die partially testate, and partially intestate. His very act in making a will indicates a purpose to exercise tbe right to dispose of all bis property according to bis will, and not according to tbe provisions of tbe statutes in case of intestacy. Foust v. Ireland, 46 N. C., 184; Boyd v. Latham, 44 N. C., 365; Reeves v. Reeves, 46 N. C., 386; Gray v. Noholoa, 214 U. S., 108; Powell v. Wood, 149 N. C., 235, 238; Peebles v. Graham, 128 N. C., 222; Harper v. Harper, 148 N. C., 453, 457; Blue v. Ritter, 118 N. C., 580; Cox v. Lumber Co., 124 N. C., 78; Speight v. Gatling, 17 N. C., 5; Jones v. Perry, 38 N. C., 200; Mordecai’s Law Lectures, 1281; Cox v. Jernigan, 154 N. C., 584; Austin v. Austin, 160 N. C., 367.

Tbe accepted rules of construction exist only for tbe purpose of aiding tbe courts in finding tbe testator’s intention. Galloway v. Carter, 100 N. C., 111; Rees v. Williams, 165 N. C., 208. Tbe welfare of society is promoted by tbe statutory right of tbe citizen to declare bis intention which be wishes to be performed after bis death in respect to bis property. Blackstone says that, in tbe order of things, this right is necessary for tbe preservation of tbe peace of society and to avoid “an infinite variety of strife and confusion.” Mordecai’s Law Lectures, 1138; Blackstone (Lewis’s Edition), Yol. 2, 490.

Hence, in order to preserve and perpetuate tbe primary principle which underlies tbe statutory right to make wills and testaments, we must find tbe intention of tbe testator, and give it effective force unless it contravenes tbe law, or public policy. Edens v. Williams, 7 N. C., 27; In re Knowles, 148 N. C., 461; Harper v. Harper, supra; Gapehart v. Burrus, 122 N. C., 119; Hines v. Mercer, 125 N. C., 71; Holt v. Holt, 114 N. C., 241; Houck v. Patterson, 126 N. C., 885; Lynch v. Melton, 150 N. C., 595; Bollins v. Keel, 115 N. C., 68; Tucker v. Moye, 115 N. C., 71; Dunn v. Hines, 164 N. C., 113; Taylor v. Brown, 165 N. C., 157; Lynch v. Melton, 150 N. C., 595.

With this approach to tbe consideration of tbe testator’s meaning and intention in using, tbe term “money on band,” and mindful of tbe rules applicable, we are minded to agree with tbe construction declared by tbe learned judge in tbe court below.

Money, in its narrow and restricted sense, may mean only currency or gold or silver coin, bearing tbe government stamp, but in its more general and popular use, it has a much broader meaning, and indicates any current measure of value which serves 'the purpose of coin in its absence. In a will it may mean, if so indicated by tbe context, any form of property. Kennedy v. Briers, 45 Tex., 305; Paul v. Ball, 31 Tex., 10. Money will be held to include real and personal property, if tbe intention is shown by tbe context.

In the matter of tbe Estate of Thomas Miller, deceased, 48 Cal., 165, money is popularly known and used as indicating property of every description. Jacob’s Estate, 140 Pa. State, 268. “Tbe rest of my money,” in view of tbe context of a testamentary document, may coyer all tbe residue of an estate. In the Goods of Bramley, 4 British Ruling Cases, 546. “Tbe balance of my money” (In re Miller, 48 Cal., 165). “Whatever money is left after my burial” (Boardman v. Stanley, 21 Week Rep., 644). “All money that remains after all debts are paid” (Re Blackstone, 95 N. Y. Supp. 977). “Tbe residue of all my money” (Nevinson v. Lennard, 34 Beav., 487; Stooke v. Stooke, 35 Beav., 396), illustrate a few of tbe instances of tbe use of tbe popular understanding and meaning of tbe term “money,” when not restricted by tbe context. To tbe same effect are tbe following: Montgomery County v. Cochrane, 121 Fed. Rep., 17; Dabney v. Dottrell, 50 Va. (9 Grattan), 572, 579; In re Thayer’s Will, 149 N. Y. Supp., 141; Pohlman v. Pohlman, 150 Ky., 679; Dillard v. Dillard, 97 Va., 434; Sehouler on Wills, Executors and Administrators, 5 ed., Vol. 1, par. 505; Jarman on Wills, 2 Vol., 372; Jenkins v. Fowler, 63 N. H., 244. Decker v. Decker, 121 Ill., 341, bolds that, “money remaining after my death” included not only actual cash, but all tbe other personal estate of tbe testator, which consisted chiefly of money loaned, and not used in paying debts, including funeral expenses.

When we come to our own decisions we find tbe same views declared. Bradley v. Jones, 37 N. C., 245; Fulkeron v. Chitty, 57 N. C., 244; Apple v. Allen, 56 N. C., 120.

A deposit in bank is, according to tbe common understanding, regarded as cash. Adams v. Jones, 59 N. C., 221. In Page v. Foust, supra, tbe word “effects” held to include land, because tbe will, as a whole, so indicated tbe intention. In Fulkeron v. Chitty, supra, tbe “rest and residue of my moneys” was held to include notes and bonds.

Tbe testator, a man of practical affairs, may be presumed to know what is usually done in tbe course of tbe administration of estates, and that all debts and cboses in action and bank deposits are reduced to cash by tbe personal representative; and tbe funeral expenses, tbe debts, and charges of administration are paid, and then tbe distribution is bad. He certainly is presumed to know that “funeral expenses, including a decent and honorable burying” could not be paid out of tbe $20.94. This is like unto a residuary clause. Tbe intent to use “money” in its popular sense is plain, and tbe judgment appealed from is a correct application of tbe law to tbe facts.

It is, therefore,

Affirmed.